Jones v. . Schull

*520 Manning, J. We tbink the ruling of bis Honor was erroneous. It was competent to sbow tbat the land in controversy bad not been listed by the owners for the-tax years 1893 and 1894, and tbat the chairman of the board of commissioners bad inserted in the list such property as bad not been listed by the own'ers, with the names of the persons supposed to be liable, and to charge against such property double the tax with which it would otherwise be chargeable. Tbe orders of the board of commissioners entered on the first Mondays of October, 1893 and 1894, were, therefore, competent, and it became the duty of the sheriff to collect the taxes assessed against the land in controversy— the legal tax embracing the double charge for failure to list. Sec. 29, ch. 296, Public Laws 1893. It was error to exclude this evidence. It appears tbat two of the plaintiffs were minors at the death of their father, W. C.'Jones, in 1894, and that they were still minors at the date of the sale and deed by the sheriff. Sec. 60, ch. 119, Acts 1895, the act in force at the time the sale for taxes was made, provides: “Infants, idiots and insane persons may redeem any land belonging to them from such sale within one year (after the expiration of such disability on like terms as if the redemption bad been made within one year) from the date of said sale, etc.” But it appears from the evidence tbat these two minors did not avail themselves of this provision in their favor, for no offer to redeem was made within the year after they attained their majority; nor for several years thereafter, and only in the complaint filed in this action. In McMillan v. Hogan, 129 N. C., 314, this Court said: “In the United States Supreme Court (Keeley v. Sanders, 99 U. S., 441, 445), it is held that the right of redemption from tax sales, although it is to be regarded favorably, does not exist, except as permitted by statute. Tbe same is held in Levi v. Newman, 130 N. Y., 11; Smith v. Macon, 20 Ark., 17; McGee v. Bailey, 86 Iowa, 513; Metz v. Hipps, 96 Pa. St., 15.” Cooley on Taxation (1 Ed.), 364, cited by the Court, is to the same effect, the author saying the rigbf to redeem “is to be asserted only in the cases and under the circumstances which are there prescribed.” All the plaintiffs, therefore, are on the same footing and their rights are to be determined alike. Tbe tax sale and deed, the validity *521 of wbieb is impeached in this action, were made under provisions of the Act of 1895, ch. 119. In King v. Cooper, 128 N. C., 347, this Court said: “In the original act of 1887, which is very nearly a copy from the reformed system prescribed for tax sales in Nebraska, there was a salutary provision (sec. 69) which required that the purchaser of lands at tax sales, or his assigns, should three months before the expiration of the time of redemption, serve a written or printed notice of his purchase on the person in actual possession of the land, and also on the person in whose name the land was assessed. This provision was omitted in the acts regulating the sale of land for taxes in 1889, 1891, 1893 and 1895. Attention having been called to the omission by this Court in Sanders v. Earp, 118 N. C., 275, this clause was reinserted by chapter 169 of the Act of 1897, in which it constitutes sections 64 and 65.” And it is further held in that decision that where such written or printed notice is required to be proven, it must be proven by the purchaser as a condition precedent, and there is no presumption arising from any provision of the law that such notice was given as required. This case has been expressly approved in Matthews v. Fry, 141 N. C., 582; Eames v. Armstrong, 146 N. C., 1; Warren v. Williford, 148 N. C., 474. Conceding there was no evidence that such notice was given as required by see. 64, ch. 169, Acts of 1897, no such notice was required by the Act of 1895, and the section of the Acts of 1897 was, by its terms, prospective only. But as that act went into effect only one month before the time for redemption had expired, even if the act were not exclusively prospective in its operation, the purchaser — the defendant Schull— could not have complied with its provisions; he could not have given the prescribed three months notice before the time of redemption had expired. The statute must be construed to be prospective in its operation unless the contrary intention be clearly expressed therein. Woodly v. Bond, 66 N. C., 396; S. v. Littlefield, 93 N. C., 614; Green v. Asheville, 114 N. C., 678; Lowe v. Harris, 112 N. C., 472; Morrison v. McDonald, 113 N. C., 327. The execution of the deed by Baird as ex-sheriff does not affect its validity or the effect of its recitals, the deed having been made in the statutory time. Eevisal, sec. 950; *522 Curlee v. Smith, 91 N. C., 172; Mfg. Co. v. Rosey, 144 N. C., 370. The other questions presented have been so fully considered and determined by this Court in several decisions, no further discussion of them is required; the citation of the cases is sufficient. Eames v. Armstrong, 146 N. C., 1; Matthews v. Fry, supra; King v. Cooper, supra, and cases cited. It will appear from those cases and from the act in force that the tax deed was conclusive evidence of certain facts and presumptive evidence of others. His Honor should have so instructed the jury. In the instruction given, there was error, for which a new trial must be had. New trial.